AI in political ads

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This past weekend, we saw an ad posted on YouTube attacking Democratic Senatorial candidate James Talarico – using words that were apparently from his own tweets, commenting on a number of social issues.  What made the ad notable was that the words from the tweets were not just displayed on the screen or read by some anonymous announcer, but instead they were stitched together and read in what was seemingly Talarico’s own voice accompanied by a very convincing AI image of Talarico himself, and interjections were included where his AI image said approvingly things about the tweets like “I remember this one” and “so true.”   It is only apparent that the ad was not an actual recording of Talarico delivering the message by a small disclaimer in one corner of the ad labeling it “AI Generated.”  The ad is a very convincing portrayal of Talarico, and we expect similar ads will show up during the course of the current election cycle.  Broadcasters and all other media companies need to be ready to deal with ads like these and comply with all legal obligations that apply to such advertising.

We have written before about the efforts during the last administration by the FCC, the Federal Election Commission (see our note here and our article here), and by Congress to regulate the use of AI in political ads on a national level.  Those efforts did not lead to national rules on such uses.  However, the majority of states have adopted some rules for the use of AI in political ads.  For media companies, the biggest issue is that these rules are not uniform but instead impose different obligations to avoid legal liability.

We last wrote extensively about the state laws affecting the use of artificial intelligence in political ads about two years ago, when only 11 states had adopted such rules.  Since then, more than 20 other states have adopted rules – and the obligations they impose are all over the board.  Some states (like Minnesota) make it illegal to use AI in political ads to portray a candidate doing something that they did not actually do unless the candidate consents.  Most do not go that far but instead require some form of disclosure (like that in the anti-Tallarico ad, except that in many states, the required text for the disclosures is far more extensive, though those disclosure obligations are not uniform and, in a few states, the  disclosure requirements are inconsistent in the state’s own criminal and civil statutes). 

Continue Reading AI in Political Attack Ads – Watch State Laws on Deep Fakes and Synthetic Media in Political Content
  • The FCC’s Enforcement Bureau entered into a Consent Decree with a public broadcaster to resolve an investigation into whether false
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October is, on paper, another busy month of regulatory deadlines for broadcasters.  But there is again the looming possibility of a federal government shutdown beginning October 1 if Congress fails to fund the government for the coming year (or pass a “continuing resolution” to allow government agencies to function at their current levels).  While as of today there are reports of a plan to extend funding through December, until a continuing resolution is passed, the threat remains.  If a shutdown does occur, the FCC, the FTC, and the Copyright Office may have to pause their operations which may result in some of the regulatory deadlines discussed below being delayed.  However, in some cases agencies have leftover funding to keep them functioning for a few extra days.  Stay tuned to see if any of the dates below have to be rescheduled. [Update – 9/26/2024, 9:00 AM – a continuing resolution extending government funding through December 20 was passed late yesterday by both the House and the Senate averting, for now, the shutdown about which we were concerned. Thus, the deadlines listed below are in effect as scheduled]

Assuming this recurring issue is resolved, let’s look at some of the October dates and deadlines, starting with the routine dates of importance to broadcasters. October 1 is the deadline for radio and television station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, the U.S. Virgin Islands, and Washington with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your station’s OPIF, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

Continue Reading October 2024 Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists, Annual EEO Public File Reports, ETRS Form One, Comment Deadlines, and More
  • The FCC announced that it has corrected its CORES database which had overstated the regulatory fees to be paid by
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It is time for our update on the coming month’s regulatory dates and deadlines to which broadcasters should be paying attention – and the deadline that probably is most important to all commercial broadcasters is not yet known.  That, of course, is the deadline for the payment of annual regulatory fees – which must be made before the federal government’s October 1 start of the new fiscal year.  We expect an announcement of the final decision on the amount of those fees for various broadcasters, and the deadlines for payment, in the next few days.  Keep on the alert for that announcement.

A second big date for all commercial broadcasters is September 6, when the lowest unit rate period for political candidate advertising – the “political window” – opens for the November 5 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart (see our article here on the basics of computing LUR).  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  For a deeper dive on how to prepare for the November general election, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide. 

Continue Reading September 2024 Regulatory Dates for Broadcasters – FCC Regulatory Fees, LUC Window for the General Election, Comment Deadlines on AI in Political Advertising and More
  • Some of the big news for broadcasters this week came not from the FCC, but from the Federal Trade Commission:
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  • The FCC announced that oppositions are due August 27 in response to the National Association of Broadcasters’ petition for reconsideration
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The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications.  The FEC asked for public comment on that petition last August (see our article here).  The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding.  As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.

The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.”  The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves.  The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.”  The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it.   

Continue Reading FEC Appears Ready to Take a Pass on Regulating AI in Political Ads
  • The FCC’s Public Safety and Homeland Security Bureau announced that October 4 is the deadline for EAS Participants to file
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